Sidebar talk reveals tension between judge and lawyer

REPORTER'S NOTEBOOK

Gardner told Karoly to stop making faces, muttering to jury.

February 17, 2004|Excerpted by Elliot Grossman Of The Morning Call

Much of the John Hirko Jr. wrongful death trial occurs at private sidebar conferences that involve only the judge and lawyers. Excerpts from a November conference -- during Bethlehem officer Joseph Riedy's testimony -- reveal the frustration of a long, hard-fought trial. Speaking are U.S. District Judge James Knoll Gardner and Hirko family lawyer John Karoly Jr.:

Gardner: "Mr. Karoly, when I made my last ruling, you gave a disgusted look towards the jury. And you shrugged your shoulders in a defiant way. Your body language was communicating, I believe intentionally to the jury, that the judge made a stupid, erroneous ruling. I will not tolerate that, whether you agree with my rulings or not, whether they are, in your view, correct or not, Mr. Karoly. I don't expect to see that conduct again."

Karoly: "Your honor, respectfully, and now that this issue has been brought up, I spent the weekend with people talking to me, indicating that they believe the treatment of the court toward me in front of the jury is a demonstration of disrespect for myself as an attorney and for the way I'm conducting this case. There have been side comments. There have been loud statements to me that I think were wholly inappropriate. "

Gardner: "Let's take this one at a time. First, the record will speak for itself as to what I've said and what I haven't said to you and in what context I've said it. The record will reflect that the remarks that I've made to you have been instructional when I've made rulings over and over and over again sustaining that you were doing certain things which my rulings indicated were inappropriate and you continued to do them. I believe that the record will also reflect that I told the jury in their opening instructions that, during the course of this trial, if it should appear to them, especially when I'm making rulings, that through my body language and the tone of my voice, that I am being critical of an attorney or a party, that that is not my intention and they should not read that into it. I believe I may have also said, when I'm thinking hard about objections and these things, I tend to get a furrowed look on my brow and a hard edge to my voice, but it is not my intention to be critical of any party, witness or attorney in this case. I know I'm impartial and I can't worry about what your clients and their supporters or others might try to psychoanalyze about me. "

Karoly: "It's not only my supporters. I received communications of comments made by the defendants in this case over the weekend and at prior times that they believe they have this case in the bag because the judge is clearly on their side and the judge is giving it to Karoly. Yes, I am frustrated at the sidebars. I cannot get a case going here, judge, because of the objections. We have spent more time at sidebar than I have in presenting evidence. This is so disjointed. The only way I can lose this case is because of the disjointed interruptions and the jury doesn't follow. And if I have some frustration, I apologize. That's what's going on in our camp and that's what I'm hearing from the public, from the press, from everybody else. The question is, what did I ever do to Judge Gardner ?"

Gardner: " Mr. Karoly, you've been involved in the trial of cases for a long time. You know it's not unusual for spectators to say, "Oh, the judge favors this side of the case or the judge favors that side of the case,' or for a party to say, "Oh, we've got it in the bag, the judge is on our side,' when there's absolutely no basis and foundation for those speculations. Everybody's an expert. I pride myself in my impartiality. I don't have any preference for who wins this case or who loses this case. What I care about passionately is that this case be tried objectively, fairly, under the facts and under the law. Now, you believe that you cannot lose and therefore, if you lose, it may in fact be because the judge was against you."

Karoly: "I don't want the judge against me."

Gardner: "Then the judge is not against you, Mr. Karoly. And the judge has never been against you. And while we're talking about what people have told me, you know, off the record, Mr. Karoly, courtroom observers have told me that frequently when I make a ruling against you, you turn to the jury and you get a disgusted look on your face."

Karoly: "That would be an improper statement, judge."

Gardner: "And then you utter things under your breath like, "Well, that's what he says."'

Karoly: "Never. Never. That would be so counter-productive, judge. I would never do anything like that."

Gardner: "You see, Mr. Karoly, these reports that others give you and they give me, very often have no basis in reality, do they? And so, it's pointless to put any stock in them. I never saw any of that action from you. And so I never said anything until this morning when I saw it with my own eyes. "

Karoly: "Judge, for the record, not only didn't that happen, but my approach throughout this case has consistently and intentionally been not to show any disappointment in the court's ruling. It's counter-productive and it would not be beneficial in this or in any other case. I've never done that in the hundreds of trials I've had. So that information was totally wrong."